TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00072-CR
William Rufus Barnes, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT OF BURNET COUNTY
NO. M9086, HONORABLE MARTIN McLEAN, JUDGE PRESIDING
PER CURIAM
Appellant pleaded no contest to an information accusing him of driving while intoxicated. Tex. Penal Code Ann. § 49.04 (West 1994 & Supp. 1996). The county court found him guilty and, pursuant to a plea bargain agreement, assessed punishment at incarceration for thirty days and a $750 fine, suspended imposition of sentence, and placed appellant on community supervision.
The State asserts that this Court is without jurisdiction because appellant's notice of appeal does not conform to the requirements of the "but clause" of rule 40(b)(1). Tex. R. App. P. 40(b)(1). This clause is not applicable to misdemeanors. Lemmons v. State, 818 S.W.2d 58, 63 (Tex. Crim. App. 1991). Our jurisdiction was properly invoked.
In his only point of error, appellant contends his prosecution in this cause violated the constitutional guarantee against double jeopardy. U.S. Const. amend. V. Appellant asserts that before his trial in this cause, he was tried and convicted for public intoxication based on the same conduct. Tex. Penal Code Ann. § 49.02 (West 1994). Appellant did not raise this contention in the county court. In general, a defendant must raise a double jeopardy claim in the trial court in order to preserve the issue for appellate review. Casey v. State, 828 S.W.2d 214, 215-18 (Tex. App.--Amarillo 1992, no pet.).
Disregarding the preservation issue, the record before us does not support appellant's double jeopardy claim. The only evidence that appellant was convicted of public intoxication is a "magistrate's warning statement/court notification order" in the transcript reflecting that appellant appeared before a magistrate in Burnet Municipal Court on June 18, 1995. While portions of the document reflect that appellant pleaded guilty or no contest to public intoxication and was fined $135, they are marked through and initialed, apparently by the magistrate. The document goes on to set bail and advise appellant that he is to appear in the Burnet County Court on a specified date to answer to the charge of driving while intoxicated.
We find this magistrate's warning form inadequate to support appellant's claim that he was convicted of public intoxication. Further, there is no evidence that this alleged public intoxication conviction was based on the same conduct for which appellant was convicted in the instant cause. The magistrate's warning form notes the date of arrest as June 17, 1995. The information in this cause alleged that the offense was committed on June 17, 1995. This identity of dates does not prove that the conduct for which appellant was allegedly convicted of public intoxication was the same conduct for which he was convicted of driving while intoxicated. Clark v. State, 590 S.W.2d 512 (Tex. Crim. App. 1979). Absent proof that the same conduct underlies both convictions, we do not reach the question whether the offenses proscribed by sections 49.02 and 49.04 are the same for double jeopardy purposes. See Blockburger v. United States, 284 U.S. 299, 304 (1932).
The point of error is overruled and the judgment of conviction is affirmed.
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed: July 3 1996
Do Not Publish
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William Rufus Barnes, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT OF BURNET COUNTY
NO. M9086, HONORABLE MARTIN McLEAN, JUDGE PRESIDING
PER CURIAM
Appellant pleaded no contest to an information accusing him of driving while intoxicated. Tex. Penal Code Ann. § 49.04 (West 1994 & Supp. 1996). The county court found him guilty and, pursuant to a plea bargain agreement, assessed punishment at incarceration for thirty days and a $750 fine, suspended imposition of sentence, and placed appellant on community supervision.
The State asserts that this Court is without jurisdiction because appellant's notice of appeal does not conform to the requirements of the "but clause" of rule 40(b)(1). Tex. R. App. P. 40(b)(1). This clause is not applicable to misdemeanors. Lemmons v. State, 818 S.W.2d 58, 63 (Tex. Crim. App. 1991). Our jurisdiction was properly invoked.
In his only point of error, appellant contends his prosecution in this cause violated the constitutional guarantee against double jeopardy. U.S. Const. amend. V. Appellant asserts that before his trial in this cause, he was tried and convicted for public intoxication based on the same conduct. Tex. Penal Code Ann. § 49.02 (West 1994). Appellant did not raise this contention in the county court. In general, a defendant must raise a double jeopardy claim in the trial court in order to preserve the issue for appellate review. Casey v. State, 828 S.W.2d 214, 215-18 (Tex. App.--Amarillo 1992, no pet.).
Disregarding the preservation issue, the record before us does not support appellant's double jeopardy claim. The only evidence that appellant was convicted of public intoxication is a "magistrate's warning statement/court notification order" in the transcript reflecting that appellant appeared before a magistrate in Burnet Municipal Court on June 18, 1995. While portions of the document reflect that appellant pleaded guilty or no contest to public intoxication and was fined $135, they are marked through and initialed, apparently by the magistrate. The document goes on to set bail and advise appellant that he is to appear in the Burnet County Court on a specified date to answer to the charge of driving while intoxicated.
We find this magistrate's warning form inadequate to support appellant's claim that he was convicted of public intoxication. Further, there is no evidence that this alleged public intoxication conviction was based on the same conduct for which appellant was convicted in the instant cause. The magistrate's warning form notes the date of arrest as June 17, 1995. The information in this cause alleged that the offense was committed on June 17, 1995. This identity of dates does not prove that the conduct for which appellant was allegedly convicted of public intoxication was the same conduct for which he was convicted of driving while intoxicated. Clark v. State, 590 S.W.2d 512 (Tex. Crim. App. 1979). Absent proof that the same conduct underlies both convictions, we do not reach the question whether the offenses proscribed by sections 49.02 and 49.04 are the same for double jeopardy purposes. See Blockburger v. United States, 284 U.S. 299, 304 (1932).